PERSPECTIVE ON IMPRISONMENT : Shut the Door Again on Sociopaths

As recorded on his rap sheet, the criminal history of Richard Allen Davis is shocking and repugnant, especially because of the years over which it developed. He appears to be a classical sociopath, a monstrous personality who derives pleasure from inflicting pain on others. Allen was a one-man crime wave over Northern California. He received stolen property in San Mateo County, kidnaped in Alameda County and assaulted with a deadly weapon in Napa County. Now he stands accused of the kidnaping and strangulation of Polly Klaas, who became a national symbol of innocence betrayed.

How could such a vicious, dangerous criminal slip through the cracks of California’s criminal justice system, and what does it suggest about attempts to reform the system? Ironically, the serial freedom of Richard Allen Davis can be traced to California’s 1977 prison sentencing reforms, which were supported by an unlikely coalition of hard-line conservatives and prisoner advocates.

Before 1977, California was a pioneer in indeterminate prison sentencing for felony offenders. A Richard Allen Davis might receive a sentence of one to 25 years, or even one year to life, for such felonies as second-degree murder, robbery and rape. In fact, those are precisely the sentences apportioned to Davis in the spring of 1977 for the crimes he had committed in 1976--kidnaping, assault, robbery and burglary.

Nevertheless, many legislators thought that the indeterminate system was too soft on criminals, and perhaps it was. For example, in 1965, the median time served by prisoners released on parole ranged from a high of 5.4 years for second-degree murder to a low of three years for burglary. But on the other side, many prisoners believed that the board’s vast discretion produced unfair disparities, since people convicted of the same crime could serve significantly different sentences. They charged that indeterminate sentencing offered prison administrators an arbitrary and potent instrument for inmate control. Their complaint was summed up for writer Jessica Mitford by a former inmate: “Don’t give us steak and eggs; get rid of the Adult Authority! Don’t put in a shiny modern hospital; free us from the tyranny of the indeterminate sentence.”

In 1977, the Legislature, spurred by critics from both political sides, changed to a determinate sentencing system. The new law required that Davis’ term be recalculated to six years, a reduction mandated despite the prescient pre-sentencing report of San Mateo County probation officer Adele Shiells, who warned of Davis’ “propensity for crime and what appears to be an accelerating potential for violence.”

Shiells’ predictions were unfortunately proved true when, after his automatic release, Davis and an accomplice robbed, kidnaped and assaulted a Redwood City woman in 1984. Sentenced to 16 years, he earned time off for work and for good behavior and had to be released in eight. If the indeterminate sentence had been in effect, someone with Davis’ personality and criminal history might have been imprisoned, if not for life, then for decades.

The pain of the multiple victims of Richard Allen Davis will not be lessened by legal reform. But the pain of future victims could be diminished by a wise and temperate reform of California’s sentencing structure.

During the past 16 years, the California prison population has increased sixfold, with no discernible impact on public safety or fear of crime, and at huge cost to the taxpayers. The “three strikes and you’re out” legislation advocated by Gov. Pete Wilson and Atty. Gen. Dan Lungren will cost billions more, with doubtful effect on safety. But under indeterminate sentencing, Richard Allen Davis could have been incarcerated for life after “one strike”--his first serious violent felony. We require a system that will reduce penalties for nonviolent offenders to make room for those who, like Davis, are palpably dangerous.

The indeterminate-sentencing system unquestionably had its flaws and could be improved by making qualified professional appointments to the parole board and providing guidelines for release. A modified indeterminate system would surely be preferable to today’s determinate sentences and even more so to the add-ons that are being proposed to shore up a fundamentally flawed structure.